Director of Public Prosecutions v Jelonek
[2021] VCC 324
•25 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01181
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL JELONEK |
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JUDGE: | HIS HONOUR JUDGE MASON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 March 2021 |
DATE OF SENTENCE: | 25 March 2021 |
CASE MAY BE CITED AS: | DPP v Jelonek |
MEDIUM NEUTRAL CITATION: | [2021] VCC 324 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Assault with intent to commit a sexual offence - sexual exposure
Legislation Cited: Mental Health Act 2014, Sentencing Act 1991
Cases Cited:Pang v The Queen [2019] VSCA 56;
Murphy v The Queen [2019] VSCA 189;
DPP v Rivette [2017] VSCA 150Sentence:22 months’ imprisonment + 24 months Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Farghar | Office of Public Prosecutiona |
For the Accused | Mr I. Polak | Haines & Polites Lawyers |
HIS HONOUR:
1Paul Jelonek, you have pleaded guilty to one charge of assault with intent to commit a sexual offence, for which the maximum penalty is 15 years' imprisonment, and to one related summary offence of sexual exposure, for which the maximum penalty is 2 years' imprisonment.
2You are presently 49 years of age, having been born on 18 October 1971, and you were aged 47 when the offending occurred in June 2019.
3You do have a criminal history, about which I will go into more detail shortly.
By way of summary:
4The offending occurred on 17 June 2019 at St Paul's Cathedral, which is located on the corner of Flinders Lane and Swanston Street in Melbourne, at approximately 3.30 pm on a Monday at a time when the Cathedral was open to members of the public.
5At the time of the offending you were 47 years of age and had no fixed address.
6The female victim of Charge 1 on the indictment was 32 years old at the time of the offending and was not known to you. She resides in the United States of America and was in Melbourne visiting family.
7At the time of the offending there were approximately six other parishioners and members of the public present inside the Cathedral, though the victim had attended the Cathedral alone.
The circumstances of the offending are as follows:
8At around 3.30 pm the victim attended St Paul's Cathedral. She walked towards the front of the Cathedral and took a seat alone in one of the pews.
As to Charge 1 on the indictment of Assault with Intent to Commit a Sexual Offence:9After approximately 15 minutes you sat down next to the victim to her left. You sat close to her, put your arm around both her shoulders and leaned into her with your body.
10The victim looked up at you and you smiled at her and said, 'Hello, sweetheart'. You leaned your face down close towards the victim's face, causing her to move her head away from you in order to avoid your face touching hers.
11You looked at the victim and told her to, 'Suck my dick'. The victim stood up and walked to the right of the Cathedral, away from you. You also stood and pursued her. As the victim reached the end of the pew you grabbed her by the front of her shoulders and pushed her back against the wall of the Cathedral.
12Whilst against the wall you grabbed the victim's head, shoulders and right upper arm and pushed her head down towards your penis. The victim's head was approximately 5 to 10 centimetres from your genital area.
13The victim tried to get away from you by moving her body. You raised your right hand with a clenched fist. The victim was fearful that you might hit her.
14You continued to tell the victim to 'Suck my dick'. You took your exposed penis out from your pants and told the victim, 'Suck my dick, you cunt'.
15You began to masturbate your exposed penis, moving your hand backwards and forwards. The victim was screaming and yelling for help. She broke away from you and ran towards the Cathedral's exit. You chased her with your semi-erect penis exposed outside your pants.
16Upon hearing the victim, other members of the public who were seated elsewhere in the Cathedral also stood and ran out the exit.
17Joshua Patacca, who was working as a security guard and a concierge at the Cathedral, heard the victim's screams and saw you chasing her with your penis exposed. He approached you and told you to 'Get the fuck out'. You told Mr Patacca, 'I had to do it … you don't understand', and put your exposed penis back inside your pants.
18These matters are described as uncharged acts to give context to the offending.
As to Summary Offence 5 of Sexual Exposure:
19Mr Patacca walked towards you towards the Cathedral's exit. You again told him, 'I had to do it … you don't understand', and again removed your exposed penis from your pants.
20You masturbated your penis before turning to face Mr Patacca, who was behind you. You masturbated for approximately three seconds. Mr Patacca told you to 'Put it away' and you complied.
21For a time after the offending you remained outside the Cathedral. The victim was conscious of your presence and she moved back and forth between the inside and outside of the Cathedral. She saw you smiling at her and trying to move towards where she was standing.
22You attempted to re-enter the Cathedral via the gift shop and began pushing Mr Patacca in the process. Mr Patacca forcibly removed you from the Cathedral, after which he watched you walk towards Swanston Street.
23Those further facts are also presented as uncharged acts to give context to your offending.
Investigation, arrest and interview:
24Mr Patacca called 000 and police attended at St Paul's Cathedral. Police spoke to the victim, to Mr Patacca and to other witnesses, who were then conveyed to the police station to provide statements. Police also obtained CCTV footage in which you were depicted at the Cathedral.
25On 22 June 2019 police located you at the intersection of Spencer and Collins Streets after recognising you from CCTV footage taken from the Cathedral.
26Police approached you, and you confirmed your identity. Police placed you under arrest in relation to the offending at St Paul's Cathedral, cautioned you and informed you of your rights. Police asked you if you wished to provide any further details about the matter, to which you responded: 'I went there and assaulted and violated people'.
27You were conveyed to Melbourne West Police Station. Police arranged for a Forensic Medical Officer to assess you, and you were deemed to be unfit for interview. On that basis, police did not interview you and you were remanded in custody.
28You have now spent a total of 642 days on remand, not including today. The chronology supplied by the prosecution in its tendered summary sets out the court processes that have caused delay. It appears clear that the delay is through no fault of yours but was caused predominantly by the difficulty in obtaining comprehensive medical records and psychiatric assessment and opinion for the purpose of a possible mental health defence and/or plea submissions.
29I now turn to your personal circumstances.
30As I noted, you are now aged 49, you were 47 at the time of offending and you do have a criminal record.
31Your first court appearance was at the Geelong Magistrates' Court in 2001 when, at the age of 29, you were convicted and fined $1,800 on two counts of recklessly causing injury. The fine was subsequently converted to 90 hours of unpaid community work.
32Some 14 years later you appeared at the Magistrates' Court in Melbourne on a charge of receiving stolen goods, for which you were placed on a good behaviour bond with a particular condition to attend for drug treatment and counselling. Later that year you reappeared for dealing with property suspected of being the proceeds of crime, theft and failing to answer bail, for which you were convicted and fined $300.
33Your next, and most recent, appearance was in October 2016 for the offences of criminal damage and possessing heroin, for which you were placed on an 8-month community correction order with drug and mental health conditions.
34Your personal history is as follows.
35You were brought up in country Victoria and at age 16 your parents separated. That same year you left school and worked, first as a carpet layer for seven years, then for Australia Post for a further two years. You then moved to Melbourne and worked variously as a labourer and electrician for many years. You believe you may still be able to obtain work with your former employer upon release.
36You had been in a settled domestic relationship for a number of years and have a son born in 1999. You split up with your partner about 10-12 years ago and lost custody of your child. Your mental health then deteriorated. You were homeless, and then provided with public housing in a large high-rise complex that accommodated many other people with substance use and mental health issues. You were unemployed and began using cannabis, then heroin, then graduated to methamphetamine. You began to experience drug‑induced psychotic episodes.
37Victorian mental health records indicate that you have had six psychiatric hospital admissions between 2008 and 2018. You have been treated involuntarily under the Mental Health Act 2014 multiple times between 2009 and 2019. The most recent treatment order was revoked on 20 March 2019 due to non-engagement with the service. I note that this was some three months before the current offending. You are currently receiving a Disability Support Pension for a mental health condition.
38You were regularly injecting ice days before the offending and have been diagnosed as experiencing acute psychosis at the time of the incidents. You were unfit to be interviewed at the time of your arrest.
39Your current diagnosis is that you suffer recurrent drug-induced psychosis. Any evidence of an independent psychiatric illness such as schizophrenia is unconvincing. Since serving a lengthy period in remand custody you have ceased medication and remain free of psychosis. Your treating psychiatrist in prison did not support a diagnosis of any underlying schizophrenia and your recent history without any psychotic recurrence supports that finding.
40You have a complete lack of recall of the incidents in question. You do recall sitting outside the church and having 'took off', but have no memory of being inside the church. You do have a recollection of hearing the voice of God directing you to do bizarre things, but these are unrelated to the facts of this case.
41Having had the victim impact statement read to you, you expressed shock and disbelief and showed insight, saying that you had to get off the drugs.
42The offending upon the victim, whilst not constituting an actual sexual assault, was nonetheless a serious example of assault with an intended sexual consequence. It was a terrifying experience in vulgar circumstances committed in a public area of refuge where the victim was entitled to feel at peace and safe. You were a stranger to the victim, who was essentially on her own and vulnerable.
43Moreover, the offending was committed in the context of intimidation and was relatively protracted. When the victim escaped your clutches and ran, you chased her until a security guard intervened. The victim impact statement expresses how the victim felt in fear of her life and has continued to suffer extended anxiety and distress.
44Your subsequent act of sexual exposure also involved a publicly disgusting act of short duration. Whilst it was an event close in time and immediately following your assault represented by Charge 1, it was a distinct event in slightly different circumstances.
45In mitigation I take into account the matters submitted by your counsel, including:
· your plea of guilty and expressions of remorse;
· the greater insight you have gained as to the dangers of developing psychosis from your continued drug use;
· that you have not previously been convicted of any sexual offending and that, absent a psychotic state, there is no evidence of any predilection to sexual assault;
· that your previous offending is relatively limited and has developed relatively late in your life, and corresponds with your decline into drug addiction following a relationship breakdown; and
· the delay in this matter coming before a sentencing court which was brought about through no fault of your own.
46The fact that you were drug-affected at the time and were most likely in a psychotic state has minimal mitigating effect. The evidence is clear that your psychotic condition was reactive to self-induced illicit drugs and, with your experience with mental health authorities, you would have been well aware of the repeated consequences of your drug use. Some allowance may be given for your long-term addiction and its general effects.
47In formulating the sentence that I have, I have considered the authorities provided to me on the question of the appropriateness of a combined sentence in the present circumstances.[1] On my analysis such a sentence in these circumstances would not be artificial or a ‘contrivance’. In my view the prohibition essentially rests upon whether it could be said that the ultimate sentence delivered would result in a sentence which would not adequately reflect the gravity of the offending or the offender's total criminality, otherwise the combination can be made. I have addressed those matters in the proposed sentence.
[1]48I will now proceed to deliver my sentence, Mr Jelonek.
49On Charge 1 on the indictment of assault with intent to commit a sexual offence, you are convicted and sentence to 21 months' imprisonment.
50On Summary Charge 5 of sexual exposure, you are convicted and sentenced to 3 months' imprisonment.
51Charge 1 is the base sentence. I direct that one month of the sentence imposed on Summary Charge 5 be served cumulatively on the sentence imposed on Charge 1.
52The total effective sentence is 22 months' imprisonment.
53Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 642 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
54On Charge 1 and Summary Charge 5 you are also ordered, with conviction, to serve a community correction order for a period of two years.
55The community correction order commences immediately upon your release from prison and ends two years from that date.
56The Corrections centre you will attend is the Melbourne Justice Service Centre at 50 Franklin Street, Melbourne, Victoria and you must telephone there - the number is on the order which you will be given a copy of shortly - within two clear working days after the completion of your imprisonment term.
57You must telephone there because, due to the COVID-19 pandemic, you cannot at this stage attend in person. Do you understand that?
58OFFENDER: Yes, I do, Your Honour.
59HIS HONOUR: All the mandatory terms of a community correction order apply, and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychologist and psychiatric, if necessary in a hospital or residential facility, as directed by the regional manager;
· you participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager.
60I will now explain the mandatory terms of the community correction order so that they are clear to you. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the community correctional centre - such things as not attending drug or alcohol-affected;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre, that is the Melbourne Centre, within two clear working days of the order starting, and as I have already indicated, that means telephoning within two clear working days after the completion of your imprisonment term;
· you must notify a community corrections officer of any change of address or employment within two working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.
61Do you understand and agree to those conditions, Mr Jelonek?
62OFFENDER: Yes, I do, Your Honour.
63HIS HONOUR: Since you will not be signing the community correction order in person, as you ordinarily would when being in court, it will be noted on the order that you have given your agreement by video link that you understand the effect and conditions of this order and you consent to it being made. Do you understand that?
64OFFENDER: Yes, I do, Your Honour.
65HIS HONOUR: If you are ill or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Melbourne Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.
66However, I must warn you that if you breach any condition of this order you will be brought back to court and that may be before me. One of the options open to me is to cancel the community correction order and resentence you on the original charges. And I may also deal with you for the breach by sending you to prison for up to three months.
67So Mr Jelonek, do you understand the consequences of breaching your community correction order?
68OFFENDER: Yes, I do, Your Honour.
69HIS HONOUR: For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of three and a half years with a non-parole period of two and a half years.
70That concludes my sentencing remarks. Is there anything else from either counsel?
71MS FARGHER: No, Your Honour.
72HIS HONOUR: Thanks, Ms Fargher. Mr Polak?
73MR POLAK: No, Your Honour.
74HIS HONOUR: Thank you.
- - -
Pang v The Queen [2019] VSCA 56; Murphy v The Queen [2019] VSCA 189;
DPP v Rivette [2017] VSCA 150
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